July 24, 2013

The Real Way to Fix Law School: More Lawyers

Earlier this week, we ran a symposium featuring prominent legal experts discussing what could be done to fix law schools. The symposium attracted numerous responses, including this one, from the University of New Hampshire's Leah Plunkett.

Law schools teach their students how to analyze both sides of every issue. So here’s the other side of the “too many lawyers, too few clients” problem that we’re hearing so much about: There are also too few lawyers and too many clients. How can both problems exist at the same time? It all comes into focus when you begin to consider things from the clients’ perspective rather than the lawyers’ point of view, and when you recognize that different groups of clients are in very different situations.

There doesn’t seem to be any doubt that there are too many lawyers available these days to serve elite clients: big businesses, wealthy non-profit institutions, high net-worth individuals, and the like. But for everybody else, lawyers are often in short supply. Paying a lawyer several hundred dollars an hour for advice or representation is a luxury beyond the means of many—if not most—Americans. Legal aid organizations do valiant work on behalf of poor clients in civil matters—like divorce, eviction, and bankruptcy cases—with little or no cost to their clients. In recent years, however, these organizations have seen their funding slashed, even as the recession and its aftermath have transformed more and more formerly middle-class Americans into potential legal aid clients. When people can’t get lawyers to help them with complex problems, they stand to lose (pdf) the things that are most precious to them, like custody of their children, the roof over their heads, or that quintessentially American opportunity to make a fresh start after crashing and burning.

Even if all Americans could afford to pay for lawyers, there may well not be any lawyers around. Outside of cities, lawyers can be scarce. As The New York Times recently reported, South Dakota has gone so far as to pass a law that will pay lawyers to work in that state’s rural communities. A worthy endeavor, but it’s difficult to imagine that the program will do much to get the over-supply of lawyers on Wall Street to migrate to Main Street: The annual stipend for South Dakota’s program is less than a month’s salary for a first-year Big Law associate in New York.1 And of course, as others have discussed, today’s young lawyers—who might otherwise be intrigued by doing Little Law on the Prairie—frequently face financial debt that is insurmountable on all but a Big Law salary.

It’s not just ordinary people, small businesses, and neighborhood institutions that can’t afford lawyers. Our local, state, and federal governments can’t. From public defenders to prosecutors to judges and beyond, spots for government lawyers are increasingly eliminated or left vacant. We the people do not have the means to hire lawyers to do our collective legal business, from prosecuting criminals to adjudicating disputes to investigating regulatory violations. This lawyer shortage poses dangers to all of us, elites included.

So what can law schools do to fix this particular supply-demand problem? Some great ideas have been floated in The New Republic’s symposium on the question, including controlling tuition costs, which would allow law grads to accept lower paying jobs. Some schools are already offering generous loan repayment assistance to graduates who do public interest work; I’m a happy beneficiary of such a program. And the federal government offers some similar loan repayment assistance too. But none of these plans goes far enough to get the lawyers who need jobs working for the clients who need legal help. Reducing student debt so that recent law grads can accept lower paying jobs doesn’t help if those jobs don’t exist. Law schools do have an important role to play in creating those jobs, including by serving as incubator for research and debate about legal job creation.

But fixing this lawyer problem can’t be done by law schools alone. Voters, law-makers, community leaders, and other stakeholders need to put mechanisms in place for paying lawyers to do legal work on Main Street. These mechanisms will look different in different places. In some instances, it could be as simple as state law-makers redoing their budgets to pay for judges. In other circumstances, it could be more complex; perhaps a national initiative along the lines of Teach for America—Practice for America—is in order. Bottom line: Lawyers won’t work for free. If we want lawyers to work for the non-elites among us, as well as for all of us as a citizenry, we need to hire them.

Leah A. Plunkett directs the Academic Success Program and teaches at University of New Hampshire School of Law. She also does research for the Berkman Center for Internet & Society at Harvard University. She has taught at Harvard Law School and worked as a legal aid lawyer in New Hampshire.